Clark v. Rice

Decided January 15, 1834

Supreme Court of Vermont · decided 1834-01-15

When the action was called for trial, and before the jury were empannelled, the defendant offered the plaintiff to permit him to take a judgment on the first count in his declaration, which the plaintiff declined. The cause proceeded to trial, and the jury found for the plaintiff on the first count, and for the defendant on all the other counts. The plaintiff claimed the costs of the jury trial, and the defendant claimed his cost on the counts on which he prevailed.

Cited by 2 later decisions — most recently February 1863

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1834-01-15

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¶1The opinion of the court was pronounced by

Mattocks, J.

¶2— We do not think it advisable to adopt the English practice of taxing cost both ways, where some of the issues are so found. The practice here has been otherwise, and it would be likely to occasion some troublesome contention whether the counts were for different causes of action, or whether they were synonymous. And although sometimes plaintiff joins a forlorn claim with a just one, yet the defendant can generally obviate this difficulty by a tender or bringing the money into court. But in this case, as the defendant tendered the plaintiff judgment for all that was due, let the plaintiff take all his cost as of a judgment, but no cost for the trial by jury.